Winne v. Winne

• Decision Date: 12 March 1901
• Parties: WINNE v. WINNE et al.
• Court: New York Court of Appeals Court of Appeals

166 N.Y. 263

59 N.E. 832

WINNE

v.WINNE et al.

Court of Appeals of New York.

March 12, 1901.

Appeal from supreme court, appellate division, First department.

Suit by Loren E. Winne against Magdaline Winne and others. From a decision of the appellate division affirming a judgment in favor of plaintiff (63 N. Y. S. 1118), defendants appeal. Affirmed.

Henry V. Borst, for appellants.

Clark L. Jordan, for respondent.

MARTIN, J.

The purpose of this action was to enforce by specific performance a contract made by the defendants' intestate with the plaintiff's mother for his benefit. The plaintiff was the son of Loren and Harriet Wetherbee. In 1870, while he was under the sole charge, custody, and control of his mother, she delivered him into the custody and control of Emily Goodemote, afterwards known as Emily Winne, under and in pursuance of a written agreement made by and between Harriet Wetherbee, for the benefit of the plaintiff, and Emily Goodemote, with the consent of her husband. This agreement was left in the possession of Mrs. Winne, but after her death it could not be found. Notice to produce it was given to the defendants, who succeeded to the possession of her property and effects. It was not produced, and secondary evidence of its contents was given. By the terms of the agreement as thus proved Mrs. Winne was to have, and the mother of the plaintiff was to surrender to her, the custody and control of the plaintiff. Mrs. Winne was to keep and maintain him as her own child, and at her death give him all her property, and make him her sole heir; and his mother was to have nothing more to do with him. After this agreement was made, the plaintiff's mother ceased to have or exercise any control, charge, or custody of him. He lived with Mrs. Winne until after he was 21 years of age, was given and accepted her name, performed the duties of a son, and the relations usually existing between parent and child existed between them, and continued until her death, which occurred December 3, 1898. She died intestate, and at the time was the owner of the real estate described in the complaint, and had about $500 of personal property. The defendants are her heirs at law and next of kin, and as such claim to be entitled to all the property she possessed at the time of her death. The defendant Magdaline Winne is the administratrix of her estate, is in possession of the personal property left by her, and also has charge of the real estate. Loren Wetherbee, the plaintiff's father, died prior to the death of Mrs. Winne. The latter left no father, mother, child, nor descendant, and no child was born to her after such contract was made. The foregoing, briefly stated, are the facts as found by the learned trial judge. Upon those facts it was held that the contract was valid, was based upon a sufficient consideration, had been fully performed by the plaintiff and his mother, was binding upon the heirs and next of kin of the defendant, and that the plaintiff was entitled to a specific performance by the defendants of the contract of Mrs. Winne. From the judgment entered upon that decision the defendants appealed to the appellate division, where the judgment was affirmed, and from that judgment the defendants Magdaline Winne, individually and as administratrix, Catherine Robb, and Hannah Vunck have appealed to this court.

The proof was sufficient to justify the trial court in finding the facts contained in its decision, or to show that there was at least some evidence to support the facts found; and under those circumstances the findings of fact in the case are conclusive upon us. ‘Whether there was any evidence to support a fact found is a question of law, which, when the affirmance by the appellate division is not unanimous, we can review; but in no other way can we deal with a question of fact in a civil case, even if we think it has been improperly decided.’ Ostrom v. Greene, 161 N. Y. 353, 357,55 N. E. 919, 920. While it is one of the prerequisites to the specific performance of an agreement that it shall be clearly proved, and certain as to its terms, this rule is to be observed and enforced in the courts below, which deal with the facts; and when such an agreement has been found, and is certain in its terms as found, it must be taken as clearly established within the rule, and the findings are conclusive upon this court. Dunckel v. Dunckel, 141 N. Y. 427, 36 N. E. 405. Therefore, in the further discussion of the questions involved in this case, it must be assumed that the facts have been conclusively settled by the findings of the trial court.

The contention of the appellants is that the agreement found by the court was not a legal or binding agreement in law, that it cannot be enforced against the estate of the decedent, and that the evidence was insufficient to establish a valid agreement which a court of equity can specifically perform. In discussing the first proposition, the appellants claim that the agreement was impossible of performance, because one person cannot make another his heir unless of his own blood. In a sense that may be true, but, as the court found that the agreement by Mrs. Winne was to maintain the plaintiff as her own child, and at her death give him her property, the addition of the words, ‘and make him her sole heir,’ does not detract from the other words of the agreement. Therefore, so far as the appellants' contention rests upon the proposition that one cannot make another, not of his own blood, his heir, it is of little moment. There are, however, cases where contracts in those words have been held valid, and specific performance enforced. In the further consideration of this question it must be assumed that this was an agreement upon the part of the intestate to take the custody and control of the plaintiff, to keep, maintain, and educate him as her own child, and at her death give him all her property. This agreement is clear, definite, certain, and was plainly understood; and the remedy sought is not, for any reason, unfair or inequitable. Under these circumstances we are unable to discover any principle upon which it can be properly held that this contract was not binding in equity, or was not enforceable against her estate.

It has been suggested that such a contract might be in conflict with the statute relating to wills and to their manner of execution. This was not a contract in the nature of a testamentary disposition of the decedent's property. On the contrary, it was a contract to be chiefly executed during the life of the decedent, with compensation to be made at her death. It was a method adopted to provide for the payment by her for the custody, control, and services of the plaintiff during his minority. It may be observed, in passing, that the decedent, before her death, received the full consideration provided for by the agreement. The plaintiff was a considerate boy, discharging all the duties that a faithful son owes his parents. Not only during the years of his minority, but even after his marriage, he continued to provide for and exercise that care over her which a dutiful child should. The plaintiff's mother also surrendered up to the decedent the entire custody and management of her child, and ‘had nothing more to do with him.’ Thus both the plaintiff and his mother have fully performed the contract upon their part, so that, as to them, it is not executory, but has been fully executed. That there was a sufficient consideration for the agreement, we have no doubt.

In Parsell v. Stryker, 41 N. Y. 480, A. let a farm to his grandson, the plaintiff, during the life of the lessor, on the condition that the plaintiff should occupy the place, the lessor to have possession of a portion of the premises; the lessee to do the work, and have two-thirds of the produce, and the lessor one-third; the farm to belong to the lessee on the death of the lessor. It was also agreed that this contract should be carried into effect by the lessor's making a will devising the farm to the lessee. Upon those facts this court held that the agreement was based upon a good consideration; that, as there was no fraud or undue influence, it was valid, and should be enforced by compelling a conveyance from the heirs of the promisor, or purchasers with notice; and that an action for specific performance by them could be maintained. The validity of such a contract, if sufficiently certain, was clearly recognized in Stanton v. Miller, 58 N. Y. 192, and again in Shakespeare v. Markham, 72 N. Y. 400. In Gall v. Gall, 64 Hun, 600, 19 N. Y. Supp. 332, which was an action for specific...